dissenting:
Lorraine Drews was appointed by the court as the plenary guardian (Ill. Rev. Stat. 1983, ch. 110½, par. 11a — 3(a)) of her 31-year-old son, Herbert J. Drews, Jr. She filed to have her son’s marriage to Sue Ann Drews dissolved. The guardian alleged that her ward is permanently and totally disabled because of a brain injury; that his wife abandoned him to the care of his parents; that during the course of their marriage they had acquired certain assets constituting marital property which were in the wife’s possession; that the wife is able-bodied and able to support herself; and that there are substantial marital debts and enormous medical bills. In the guardian’s petition to dissolve the marriage, she requests that the marital estate be equitably distributed and that the ward be awarded maintenance from his wife.
The wife filed a motion to dismiss, contending that the right to file for a dissolution of a marriage is a personal right and must be brought by the spouse and cannot be maintained by a guardian on behalf of her ward. The trial court granted the motion. The result of granting the motion was, of course, to hold as a matter of law, at least under this factual setting, that a plenary guardian of the person and the estate has no legal right to seek a marriage dissolution. As a consequence, the court then cannot exercise its discretionary authority in determining whether the guardian’s actions were in the ward’s best interests.
The majority in considering this issue finds that there is nothing in either of the Probate Act of 1975 or in the IMDMA which either provides for or excludes the institution of the dissolution proceeding by the guardian. Further, the majority finds that there is no precedent in the decisions that it examined which holds that a guardian may never institute a dissolution of marriage action. It concludes, however, that the guardian generally lacks the authority of power to institute an action for dissolution. It reaches this conclusion because it believes that the decision to seek a marriage dissolution is strictly a personal right and that the dissolution of marriage has an enormous impact upon both the ward and the spouse.
I respectfully dissent from the holding and from the reasoning of the majority. I believe that the right to seek a divorce is encompassed within the duties of a plenary guardian who is charged with the responsibility of acting in the ward’s best interests. Upon appointment as a guardian, the guardian is empowered to make all necessary decisions concerning the ward’s best interests. (Ill. Rev. Stat. 1983, ch. 110½, pars. 11a — 17 and 11a — 18.) Given such broad authority, the court has the discretionary authority under the statute to determine whether the guardian’s actions are for the ward’s best interests. I fail to see why in the instant case it should be found as a matter of law that a guardian may not seek the dissolution of the ward’s marriage when it has been alleged that dissolution is for the ward’s best interests. Whether dissolution is appropriate here is for the trial court to determine "within its discretionary power.
In considering the fact that the marriage dissolution is strictly a personal right, the majority expresses a noble sentiment when it says that in a marriage there is no fault that may not be forgiven. To a totally and permanently disabled ward who has been abandoned and deprived of a portion of his marital estate and is in no position to forgive, the sentimentality lacks substance. Still considering this idea that marriage dissolution is a personal right that cannot be exercised by a guardian, other courts have found that the guardian may consent to an operation (In re Guardianship of Roe (1981), 383 Mass. 415, 421 N.E.2d 40, sterilization (In re Moe (1982), 385 Mass. 555, 432 N.E.2d 712), donation of a kidney (Strunk v. Strunk (Ky. 1969), 445 S.W.2d 145) and even consent to remove life support systems and allow the ward to die (In re Conroy (1985), 98 N.J. 321, 486 A.2d 1209, modifying In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647). No more personal is the right to dissolve a marriage.
I would reverse this dismissal that was based on the pleadings. This matter should be remanded to that part of the trial court which established the guardianship. That judge should thoroughly consider all of the circumstances regarding the alleged abandonment and marital estate matters and determine whether the guardian’s initiation of marriage dissolution proceedings is in the ward’s best interests.